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Serial Relator Getting the Boot?

Written by:  Samantha P. Kingsbury

This past Friday, hospital company HCA Holdings, Inc. asked a federal court judge to dismiss a False Claims Act (FCA) suit filed by whistleblower and former employee, Stephen McMullen.  Mr. McMullen worked for an HCA-affiliated hospital for a total of 20-22 days over a period of five months before accusing the company of fraudulently billing Medicare for non-invasive diagnostic vascular studies.

HCA argued that Mr. McMullen’s first and amended complaints contained only generalized allegations without factual support because he only worked at one HCA-affiliated facility for a short period of time.  HCA also argued that Mr. McMullen was a serial relator who had demonstrated a pattern of working for providers for a short time and then accusing them of failing to comply with technical guidance relating to accreditation of laboratories and/or the supervision of technicians performing vascular scans.

HCA is not the only hospital company against which Mr. McMullen has made such accusations.  In May 2012 – on the same day that he filed suit against HCA – Mr. McMullen filed a qui tam FCA suit against Ascension Health based on the same alleged underlying conduct.  Ascension moved to dismiss the matter in June 2013.  Ascension noted that its case was at least the fourth case in which Mr. McMullen had sued a hospital operator over alleged FCA violations.

As of the date of this post, it remains to be seen what will become of Mr. McMullen and his various FCA suits.  For information on recently unsealed FCA qui tam cases, follow Mintz Levin’s Qui Tam Updates and check back each month for additional updates.

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Samantha advises clients on regulatory and enforcement matters. She has deep experience handling violations of the federal ant-kickback statute and FCA investigations for clinical laboratories and hospitals.